193 U.S.

430
24 S.Ct. 502
48 L.Ed. 737

CHARLES T. BARNEY, Appt.,

v.
CITY OF NEW YORK, The Board of Rapid Transit Railroad
Commissioners for the City of New York, et al.
No. 159.
Argued March 3, 4, 1904.
Decided March 21, 1904.

This was a bill to enjoin the city of New York, the board of rapid transit
commissioners for New York, John B. McDonald, and the administratrix
of Shaler, deceased, from proceeding with the construction of the rapid
transit railroad tunnel under Park avenue, New York, adjacent to the
premises of Charles T. Barney, 'until the easements appurtenant thereto
shall have been acquired according to law and due compensation made
therefor to complainant;' and from constructing such railroad otherwise
than in accordance with the routes and general plan adopted and approved
by the local authorities and by the owners of abutting property, or the
appellate division of the supreme court, in lieu thereof.
From the bill it appeared that the rapid transit board had, on behalf of the
city, devised routes and general plans, and entered into a contract for the
construction of a rapid transit railroad with McDonald, of whom Ira A.
Shaler was a sub-contractor, under the rapid transit acts of the state (Laws
1891, chap. 4; Laws 1892, chaps. 102, 556; Laws 1894, chaps. 528, 752;
Laws 1895, chap. 519; Laws 1900, chap. 729; Laws 1901, chap. 587;
Laws 1902, chaps. 533, 542, 544, 584).
Park avenue was one of the streets under which the railroad was
authorized to be built, and the routes and general plan of the road were
prescribed by the board by resolutions of January 14 and February 4,
1897, which received the assent of the local authorities and of the
appellate division of the supreme court in lieu of the consent of the
abutting property owners.

Complainant alleged that he 'consented to the construction of the said

rapid transit railroad in accordance with the said routes and general plan
of construction, and did not oppose the proceedings hereinafter mentioned,
which the said board of rapid transit railroad commissioners instituted for
the purpose of obtaining the determination of three commissioners
appointed by the said appellate division that such rapid transit railroad
ought to be constructed and operated; nor did your orator oppose the
confirmation of said determination by the said appellate division.'
But complainant averred that the portion of the railroad under Park avenue
and in front of his premises was being built 27 feet nearer to his premises
than was authorized by the routes and general plan; and that the work was
'being thus performed by said defendant McDonald and the said Shaler
without any authority other than certain directions given by the chief
engineer employed by the board of rapid transit commissioners and
embodied in certain so-called working drawings, or detail drawings,
prepared by him or at his instance, and recently approved informally by
said board. And . . . that the fact that such directions had been given by
the chief engineer and that said work was being thus performed by the
contractor, as aforesaid, was not until recently specifically known to said
board; that such action of said chief engineer and contractor has never
been formally or specifically approved by said board; that there has been
no change made or authorized by said board in the said 'routes and general
plan,' nor has there been any modification of the contract or specification
with reference to the construction of that part of the tunnel lying under
Park avenue between Thirty-third and Forty-first streets; that no notice
was given to any of the property owners along said street that it was
proposed by the defendants or any of them to change the position of the
tunnel to any material extent from the position shown and described in the
said 'routes and general plan,' nor was any opportunity ever given to said
property owners or the citizens generally to be heard with respect to any
such change.'
Complainant further averred 'that at none of the times herein mentioned
did the said board of rapid transit railroad commissioners have authority
(if at all) to enter into any contract for the construction of any rapid transit
railroad under or upon the said Park avenue, except in accordance with the
said 'routes and general plan' contained in the said resolutions of January
14th and February 4th, 1897, and that at no time did the said board have
authority to prepare detailed plans and specifications, except (if at all) in
accordance with the said general plan of construction, or to alter any plans
or specifications prepared by them, excepting in accordance with said
general plan of construction. That the act of the said board in permitting

the defendants McDonald and the said Shaler to enter upon that part of
Park avenue between Thirty-third and Forty-first streets where the tunnel
is now in process of construction, as aforesaid, was illegal and
unauthorized, and the defendants McDonald and the said Shaler have
entered upon the same unlawfully and without authority; and for the
further reason that the construction of the rapid transit railway on the
easterly side of Park avenue, in front of your orator's said premises, takes
his property without due process of law, in violation of the provisions of
the 14th Amendment to the Constitution of the United States, and that said
rapid transit act, so far as it purports to authorize the construction of a
tunnel and railway in said Park avenue without the consent of abutting
owners or compensation therefor, is void, because it deprives your orator
of his property without due process of law, in violation of the provisions
of the said amendment.'
On the bill and affidavits, complainant moved for an injunction pendente
lite, and defendants resisted the motion, submitting, in pursuance of
stipulation, affidavits filed in their behalf in the case of Huntington v. New
York, the same defendants, since brought here, numbered at this term 173,
and argued with this case. The opinion in that case (118 Fed. 683) was
adopted in this, and the court, of its own motion, under 5 of the act of
March 3, 1875, chap 137 [18 Stat. at L. 472, U. S. Comp. Stat. 1901, p.
511], entered a decree dismissing the bill for want of jurisdiction, and
certified that question to this court:
Messrs. Maxwell Evarts and Arthur H. Masten for appellant.
[Argument of Counsel from pages 433-435 intentionally omitted]
Messrs. Edward M. Shepard, Pratt A. Brown, and De Lancey Nicoll for
appellees.
[Argument of Counsel from pages 435-436 intentionally omitted]
Statement by Mr. Chief Justice Fuller:
The jurisdiction of the circuit court was invoked upon the ground that, by
the tunnel construction sought to be enjoined, complainant was deprived
of his property without due process of law, in violation of the 14th
Amendment. But that amendment prohibits deprivation by a state, and
here the bill alleged that what was done was without authority and illegal.
The city acts through the rapid transit board, which possesses the powers
specifically vested. It is empowered to prescribe the routes and general

plan of any proposed rapid transit railroad within the city, and every such
plan must 'contain such details as to manner of construction as may be
necessary to show the extent to which any street, avenue, or other public
place is to be encroached upon and the property abutting thereon affected.'
Consents of the municipal authorities and the abutting property owners to
construction on the routes and plans adopted must be obtained, and any
change in the detailed plans and specifications must accord with the
general plan of construction, and, if not, like consents must be obtained to
such change.
The bill asserted that the easterly tunnel section under Park avenue was
not within the routes and general plan consented to, and that the
construction was unauthorized. And this is the view taken by the supreme
court of New York. Barney v. Rapid Transit R. Co. 38 Misc. 549, 77 N.
Y. Supp. 1083; Barney v. New York, 39 Misc. 719, 80 N. Y. Supp. 972, 83
App. Div. 237, 82 N. Y. Supp. 124.
Thus, the bill on its face proceeded on the theory that the construction of
the easterly tunnel section was not only not authorized, but was forbidden
by the legislation, and hence was not action by the state of New York
within the intent and meaning of the 14th Amendment, and the circuit
court was right in dismissing it for want of jurisdiction.
Controversies over violations of the laws of New York are controversies
to be dealt with by the courts of the state. Complainant's grievance was
that the law of the state had been broken, and not a grievance inflicted by
action of the legislative or executive or judicial department of the state;
and the principle is that it is for the state courts to remedy acts of state
officers done without the authority of, or contrary to, state law. Missouri
v. Dockery, 191 U. S. 165, ante, p. 53, 24 Sup. Ct. Rep. 53; Civil Rights
Cases, 109 U. S. 3, 27 L. ed. 835, 3 Sup. Ct. Rep. 18; Virginia v. Rives,
100 U. S. 313, 25 L. ed. 667.
In Virginia v. Rives, referring to an alleged denial of civil rights on
account of race and color in the impaneling of a jury, the laws of Virginia
in respect of the selection of juries appearing to be unobjectionable, Mr.
Justice Strong, speaking for the court, said:
'It is evident, therefore, that the denial or inability to enforce in the judicial
tribunals of a state, rights secured to a defendant by any law providing for
the equal civil rights of all persons citizens of the United States, of which
641 (U. S. Comp. Stat. 1901, p. 520) speaks, is primarily, if not
exclusively, a denial of such rights, or an inability to enforce them,

resulting from the Constitution or laws of the state, rather than a denial
first made manifest at the trial of the case. In other words, the statute has
reference to a legislative denial, or an inability resulting from it. . . .
'When a statute of the state denies his right, or interposes a bar to his
enforcing it, in the judicial tribunals, the presumption is fair that they will
be controlled by it in their decisions; and in such a case a defendant may
affirm on oath what is necessary for a removal. Such a case is clearly
within the provisions of 641. But when a subordinate officer of the state,
in violation of state law, undertakes to deprive an accused party of a right
which the statute law accords to him, as in the case at bar, it can hardly be
said that he is denied, or cannot enforce, 'in the judicial tribunals of the
state' the rights which belong to him. In such a case it ought to be
presumed the court will redress the wrong. If the accused is deprived of
the right, the final and practical denial will be in the judicial tribunal
which tries the case, after the trial has commenced. If, as in this case, the
subordinate officer whose duty it is to select jurors fails to discharge that
duty in the true spirit of the law; if he excludes all colored men solely
because they are colored; or if the sheriff to whom a venire is given,
composed of both white and colored citizens, neglects to summon the
colored jurors only because they are colored; or if a clerk whose duty it is
to take the twelve names from the box rejects all the colored jurors for the
same reason,it can with no propriety be said the defendant's right is
denied by the state and cannot be enforced in the judicial tribunals. The
court will correct the wrong, will quash the indictment or the panel, or, if
not, the error will be corrected in a superior court. We cannot think such
cases are within the provisions of 641. Denials of equal rights in the
action of the judicial tribunals of the state are left to the revisory powers of
this court.'
In the Civil Rights Cases, in which the court was dealing with the act of
March 1, 1875, 18 Stat. at L. 335, chap. 114 (U. S. Comp. Stat. 1901, p.
1260), Mr. Justice Bradley said:

'In this connection it is proper to state that civil rights, such as are guaranteed by
the Constitution against state aggression, cannot be impaired by the wrongful
acts of individuals, unsupported by state authority in the shape of laws,
customs, or judicial or executive proceedings. The wrongful act of an
individual, unsupported by any such authority, is simply a private wrong, or a
crime of that individual; an invasion of the rights of the injured party, it is true,
whether they affect his person, his property, or his reputation; but if not
sanctioned in some way by the state, or not done under state authority, his rights

remain in full force, and may presumably be vindicated by resort to the laws of
the state for redress.'
2

There are many cases in this court involving the application of the 11th
Amendment which draw the distinction between acts of public officers virtute
officii, and their acts without lawful right, colore officii; and in Pennoyer v.
McConnaughy, 140 U. S. 1, 35 L. ed 363, 11 Sup. Ct. Rep. 699, Mr. Justice
Lamar defined the two classes to be, those brought against officers of the state
as representing the state's action and liability, and those against officers of the
state when claiming to act as such without lawful authority. The subject is
discussed to be, those brought against officers of the Wesley, 167 U. S. 204, 42
L. ed. 137, 17 Sup. Ct. Rep. 770, and Fitts v. McGhee, 172 U. S. 516, 43 L. ed.
535, 19 Sup. Ct. Rep. 269. Appellant's counsel rely on certain expressions in
the opinion in Ex parte Virginia, 100 U. S. 339, 25 L. ed. 676, but that was a
case in which what was regarded as the final judgment of a state court was
under consideration, and Mr. Justice Strong also said: 'Whoever, by virtue of
public position under a state government, deprives another of property, life, or
liberty, without due process of law, or denies or takes away the equal protection
of the laws, violates the constitutional inhibition; and as he acts in the name and
for the state, and is clothed with the state's power, his act is that of the state.'

And case Manhattan R. Co. v. New York, 18 Fed. 195; Kiernan v. Multnomah
County, 95 Fed. 849; Re Storti, 109 Fed. 807.

Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108, and
Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct.
Rep. 581, are cited by appellant, but in those cases judgments of the highest
judicial tribunals of the state were treated as acts of the state, and no question of
the correctness of that view arises here.

And so in Reagan v. Farmers' Loan & T. Co. 154 U. S. 362, 38 L. ed. 1014, 4
Inters. Com. Rep. 560, 14 Sup. Ct. Rep. 1047, the general assembly of Texas
had established a railroad commission and given it power to fix reasonable
rates, with discretion to determine what rates were reasonable. The act provided
that suits might be brought by individuals against the commission 'in a court of
competent jurisdiction in Travis county, Texas,' and a citizen of another state
sued them in the circuit court of the United States for the district which
embraced Travis county, and this was held to be authorized by the state statute.

And as the establishment of rates by the commission was the establishment of

rates by the state itself, and the determination of what was reasonable was left

to the discretion of the commission, their action could not be regarded as

unauthorized, even though they may have exercised the discretion unfairly.
7

Similarly in Pacific Gas Improv. v. Ellert, 64 Fed. 421, where a public board
was given power to improve streets, and proceeded in excess of its powers, but
not in violation of them, its action was regarded by Mr. Justice McKenna, then
circuit judge, as state action.

In the present case defendants were proceeding, not only in violation of

provisions of the state law, but in opposition to plain prohibitions.

Section 5 of the act of March 3, 1875, 18 Stat. at L. 470, chap. 137 (U. S.
Comp. Stat. 1901, p. 508), provided that if, in any suit in the circuit court, it
should appear, to the satisfaction of the court, at any time, that the suit did not
really and substantially involve a dispute or controversy properly within its
jurisdiction, the court should proceed no further, but dismiss the suit. The last
paragraph of this section was in terms repealed by the act of March 3, 1887, 24
Stat. at L. 522, chap. 373, re-enacted August 13, 1888, 25 Stat. at L. 433, chap.
866 (U. S. Comp. Stat. 1901, p. 515) (the part repealed not being material here),
but otherwise the section remained and remains in full force. This case went off
on the motion for preliminary injunction, and the bill was properly dismissed,
whether treated as if heard on demurrer, or on the proofs by affidavit.

10

Decree affirmed.